Loading ...Lock and Load
The U.S. Supreme Court has said you have an individual right to own a gun. It also said you do not have the individual right to own a weapon that can be fired from the shoulder.
The opinion in D.C v. Heller went through a very detailed (157 pages) analysis of the 2nd Amendment. In so many words the Court said the Second Amendment is an individual right and governments can’t just outright ban them.
It’s also important to remember the other part of what the Court’s opinion said…
“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep an carry any weapon for any purpose whatsoever in any manner whatsoever for whatever purpose.”
This is called common sense. No total bans and reasonable restrictions. Who could argue with this?
June 26th, 2008 at 11:16 am
It also struck down the trigger-lock requirement of the law, which will undoubtedly bring much criticism.
June 26th, 2008 at 11:43 am
What was the trigger-lock requirement: did it require the sale of the locks with the guns or did it require the use of the locks?
June 26th, 2008 at 11:44 am
Where do I join the “militia” ?
This is one more example why we need a new president, who will appoint people to counter that idiot Clarence Thomas.
June 26th, 2008 at 11:53 am
One must actually think in the first place in order for him/her to ‘Think Again’.
June 26th, 2008 at 12:00 pm
If being a dogmatic member of this teeter-tooter of justice constitutes being an “idiot”, then it appears the other end is accommodating Justice Ginsburg very nicely. I’m not particularly joyous that child rapists evade capital punishment.
June 26th, 2008 at 12:20 pm
Wow - the SC has ruled sensibly at least three times in the past couple of weeks.
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- the 2nd Amendment is actually protected
- habeus corpus is actually protected
- and protection from cruel and unusual punishment is actually protected.
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It’s no wonder that those who prefer politicasl ideology over Constitutional protections are complaining - the SC is functioning as it’s supposed to. But I won’t hold my breath - this may only be an anomally in the trend. Clearly the Supremes are appointed because of their political leaning rather than there adherence to Constitutional law. It’s probably just a matter of political composition that the Constitution is being upheld rather than a dedication to protect it, regardless of political leaning.
June 26th, 2008 at 12:20 pm
I looked at the first part of the decision and answered my own question: the trigger-lock requirement was that they had to be used.
Think Again, there are several militias that you could join–though I’m not sure that you would feel welcome there. But the amendment says nothing about only militia members having the right to carry arms. It says, “the right of the people to keep and bear Arms, shall not be infringed.” “The people” being key here, not “members of militias”.
June 26th, 2008 at 1:12 pm
Wikipedia dicusses “militia” in depth, as do multiple court decisions and over two centuries of common practice:
“…The meanings of the term “keep and bear arms” are integral to the debate and much of the amendment’s jurisprudence relies on such interpretations.
Relative to the “bear arms” meanings, one study found “…that the overwhelming preponderance of usage of 300 examples of the ‘bear arms’ expression in public discourse in early America was in an unambiguous, explicitly military context in a figurative (and euphemistic) sense to stand for military service”.[81] Further, the Oxford English Dictionary on Historical Principles declares that a meaning of “to bear arms” is a figurative usage meaning “to serve as a soldier, do military service, fight”.
Lest anyone doubt the exact wording of the Second Amendment, here it is:
“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”
Under the precepts of grammar used at the time fo the Revolution, which was, quite frankly, “The King’s English,” “militia” and “the people” are interchangable. Absolutely no doubt about it.
I didn’t write it, I just researched it.
That being said, I’m all for anyone owning a gun who wants to own a gun. Properly registered. So, in my belief, the DC prohibition was, clearly, a reach, and given the crime rate there, hasn’t worked if it’s been in effect 32 years.
Read the opinions, dissents and concurring, again Joel. On this and other issues, especially Bush v. Gore. Clarence Thomas was and is an idiot.
Public hair on my Coke can, indeed. This is our Supreme Court. Thank God his opinion was minority on habius.
June 26th, 2008 at 1:58 pm
NRA..the eavil empire.
June 26th, 2008 at 2:26 pm
I am reading it right now. A couple of things are interesting: 1) The majority disagree with your english. Scalia–who actually wrote this–dissects the English quite well. Scalia’s conclusion on this:
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“This [the use of 'The People' everwhere else in the Constitution] contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.”
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2) The definition of militia was broader in those times. Specifically the majority opinion quotes from the first Militia Act:
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“This is fully consistent with the ordinary definition of the militia as all able-bodied men. From that pool, Congress has plenary power to organize the units that will make up an effective fighting force. That is what Congress did in the first militia Act, which specified that “each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and
respectively be enrolled in the militia.” Act of May 8, 1792, 1 Stat. 271.”
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I have no clue why you are bringing Thomas into the discussion since he did not write the decision. I have read Bush v Gore as well, and the only “idiot[s]” around were the justices on the Florida Supreme Court.
June 26th, 2008 at 2:44 pm
Think Again wrote: “Under the precepts of grammar used at the time fo the Revolution, which was, quite frankly, “The King’s English,” “militia” and “the people” are interchangable. Absolutely no doubt about it.”
As I continue through the ruling, I find this contention to be untenable: Scalia did a good job of looking at contemporary interpretations of this phrasing and he only found one dissension from the majority opinion on “the people” being interpreted more broadly than members of the militia. But even that dissension recognized that their opinion at that time was the minority opinion. In other words, people at the time believed that “the people” was more than just those who were members of the militia.
June 26th, 2008 at 2:51 pm
Joel, you’re just wrong.
June 26th, 2008 at 2:53 pm
“What was the trigger-lock requirement: did it require the sale of the locks with the guns or did it require the use of the locks?”
the DC law required all long rifles to be stored unloaded, disassembled, and a trigger lock in place.
Thus rendering them practically unusable in a self-defense situation.
June 26th, 2008 at 3:31 pm
No, you are wrong, Think Again.
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OK, that was useful.
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All I am doing is REFERENCING AND QUOTING THE MAJORITY OPINION. As I am reading through this stuff, the majority opinion is far more compelling.
June 26th, 2008 at 4:41 pm
Now a couple of things in the dissenting opinion that I question: Justice Stevens writes that “the People” is always collective and not individual in the Constitution. He explicitly describes free speech, petitioning the government, and searches and seizures of property as collective and not individual rights. With this logic, Congress could pass laws limiting writing emails to Congressmen unless it was done as part of a group. This is silly–free speech and petitioning et al are clearly individual rights.
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Justice Stevens adds that petitioning the government is collective because individual petitioning would not be “effective”. This is odd. But it is important, too, as it indicates that the minority sees a right as tied to the end result.
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So we come to the meat and potatoes of his argument. Basically Justice Stevens is saying that the REASON for the amendment was State organized militias (the amendment does not indicate who regulates militias–or what that means), and therefore the amendment only protects militia use. Justice Breyer goes as far to indicate that if a State does not have a militia, it would be ok to ban guns.
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Justice Breyer add a bit of humor to the situation in that he argues for legislatures to decide the extent to which to abridge the second amendment, while he voted to not allow legislatures to decide how to punish child rapists.
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Strangely, Justice Stevens quotes a Virginia ratification proposal which was suggesting the amendment. It in part said, “That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people …” You see many of the elements that went into the second amendment here. But it is clear that the militia is a subset of “the people”–the people was not intended to be “the militia”.
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To me, the majority opinion clearly wins the argument in my mind of whether or not “the people” equals “the militia”.
June 26th, 2008 at 5:32 pm
Think Again, instead of getting your facts from Sarah Brady go back and read what Madison and Jefferson wrote about the Second Amendment. then quote that. (if you forgot, those where two of the men that basically wrote the entire document).
June 26th, 2008 at 7:53 pm
Man, did I dial-up the wrong blog? Is this, “Ask a Lawyer”? I was looking for belly-aching central about the Skunk and Weasel parties. Instead, why pay for expensive LSAT study manuals when you can just take notes from Abdul’s blog?
June 26th, 2008 at 9:03 pm
Where in the decision does it say that the right to keep and bear a sholder weapon was not included as an individual right?
June 26th, 2008 at 11:54 pm
Abdul, you are really a piece of work. Your political outlook is as boringly centrist as your radio show.
“Sensible gun laws” were first insitututed by white people to keep black people from getting guns.
The Indiana constitution could not be any clearer:
“The people shall have a right to bear arms, for the defense of themselves and the State.”
NO permits required. NO ban on felons owning guns. Every individual has a right to defend “themselves” whereever they might be.
A racist Indiana Supreme Court in the 1950’s restricted a right every bit as important as the right to vote.
Ruth Bader Ginsburg is a Fascist. She ruled against medical marijuana based on the Commerce Clause fer cryin out loud.
June 27th, 2008 at 12:16 am
Miranda v Arizona: “Where rights (liberty) secured by the Constitution are involved, there can be no legislation which would abrogate (abolish) them.”
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In Murdock v. Pennsylvania, 319 US 105: “No State shall convert a liberty into a privilege, license it, and charge a fee therefore.”
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In Sherer v. Cullen, 481 F 946 “There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights.”
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In Shuttlesworth v. City of Birmingham Alabama, 373 US 262: “If the State converts a right (liberty) into a privilege, the citizen can ignore the license and fee and engage in the right (liberty) with impunity.”
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http://www.nhexecutivecouncil.com/gun_control_for_dummies.htm
June 27th, 2008 at 3:45 am
Of course, Jay is correct. While the language of the federal 2nd Amendment has been debated for decades, the same cannot be said of our Indiana Constitution, Article 1 Section 32.
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If the 2nd Amendment were abolished tomorrow, we would still have 1-32.
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Our very own Indiana Supreme Court failed miserably in their 1958 decision in Matthews v Indiana, 237 Ind. 677.
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Justice Bobbitt had the following to say:
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“Article 1, section 32, supra, does not say that the people shall have a right to bear pistols, or any other specific kind or
type of arms.”
http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/matthews_v_state.txt
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The majority holding was simply wrong. “Arms” means weapons. It’s just-that-simple. This holding is viewed as allowing our legislators the ability to ‘regulate’ handguns.
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There are 16 States that explicitly have language in their Constitutions that permit regulation of ‘arms’. Some examples follow:
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GEORGIA: Article 1, Section 1, Paragraph VIII. Arms, right to keep and bear.
The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.
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ILLINOIS: Article 1, SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.
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KENTUCKY: Section 1, Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.
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OKLAHOMA: Article 2, Section 26. Bearing arms - Carrying weapons.
The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.
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Of course, Abdul will disagree. Even when the sample language above is MISSING from our Indiana Constitution, Abdul will hold that government can still regulate that right.
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But, where does government get the authority to regulate that right? Certainly NOT from our Constitution, for we have Article 1 Section 25:
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Section 25. No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.
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No ‘blank checks’ here, folks!! If government wants to pass a law that does NOT draw its authority FROM our Constitution, such a law would be void.
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Since there are no strings on 1-32, ANY regulation of that right should be unconstitutional.
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If someone doesn’t like the language, then AMEND the language…don’t trample it and ignore it.
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It’s the CONSTITUTIONAL thing to do !!
June 27th, 2008 at 6:58 am
Abdul is on the air now, speaking of the ruling. He also advocates that ‘reasonable regulation’ of the bearing of arms is fine, such as banning them in government buildings.
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Such has been done with our Statehouse…BUT, the ‘ban’ is only against We the People! Judges, lawyers and legislators CAN carry their guns in the Statehouse.
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The Indiana Constitution forbids special privileges.
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If the ban is to be constitutional, then it must be uniform, and be applied to everyone except security personnel.
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Abdul glossed over this important fact. I wonder why?
June 27th, 2008 at 9:56 am
Robert - Thomas Jefferson recommended revolution every 20 or so years in order to assure that government is always serving the people. That probably gives insight on why elected officials would choose to arm themselves while making certain that the people remain unarmed. When it becomes obvious to the people that revolution is the only recourse, those in office want to be holding all of the cards.
June 27th, 2008 at 10:29 am
I get kind of turned on by the words “Lock and load”.
June 27th, 2008 at 11:02 am
Shorebreak, that sentiment was actually talked about in the majority opinion. In England, the ruling class would not ban local militias, they would rather ban the arms from all the people (except themselves). The Brits had even tried this in the Colonies in particular areas leading up to the Revolution. This was obviously part of what the founders were trying to protect themselves against when they wrote the second amendment. (p. 21 of the decision)
June 27th, 2008 at 11:07 am
Shorebreak
June 27th, 2008 at 9:56 am
“When it becomes obvious to the people that revolution is the only recourse, those in office want to be holding all of the cards.”
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You are right!
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See: Germany, 1936. First remove their weapons. Then their property. Then their freedom. Then their lives.
June 27th, 2008 at 11:42 am
Jack and Joel,
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I’m glad that both of you “get it”. Most Americans seem to have two very immature and incorrect opinions on the matter. The 1st is that “our government would never cause us harm”. Human history is a study of the exact opposite. The 2nd is that citizens are safer without guns. Refer to my 1st example to understand why that is a naive and uneducated position.
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FYI - if it weren’t for the 2nd Amendment, we likely would have had a coup back in 1933:
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http://www.bbc.co.uk/radio4/history/document/document_20070723.shtml
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Unfortunately for us, the plotters ended up achieving their coup by controlling the media and manipulating public sentiment rather than via violence, but the fact remains that the 2nd Amendment has already saved this nation from hostile takeover. The day we lose it is the day that we can kiss our liberties good-bye.
June 27th, 2008 at 3:24 pm
Think Again is Wrong Again, but will never admit it.
June 27th, 2008 at 7:06 pm
Shorebreak is absolutely correct. The idea that the government would never harm us is ridiculous. We are already harmed in so many ways … abusive and complicated taxation, $4.00 gas partially due to high inflation caused by the government printing/spending too much money and/or going deeper into debt. Restrictions on energy production. Attempts to restrict our right to self-defense (including from our own government). Invasion of our privacy and our banking transactions. Making war without just cause. There is an endless list.
And speaking of that revolution Shorebreak, when can we start? Can we just start planning the Third Continental Congress now? ;-) Existing representatives of our Federal Government are not invited. Except maybe Ron. ;-)
June 28th, 2008 at 2:13 pm
I did not see where they said shoulder fired weapons are OK to ban? What do you have against people having rifles or shotguns?
Anyways, does it really matter what a handful of elitist in DC had to say on the topic? As long as thugs have certain weapons, and the police can’t stop them from committing crimes, I plan on having the same weapons for under the equal protection clause of the constitution. So they banned shoulder fired weapons. Lucky for us, AKs, ARs, G3s, and FALs are hip fired weapons ;) .
June 28th, 2008 at 11:18 pm
John Do,
The difference between you and I is that you want weapons to protect yourself from thugs on the street, while I prefer to have weapons for the reason that the 2nd was written - to protect the Constitution and our liberty from the thugs in Washington.
June 30th, 2008 at 4:46 am
Hmmm….I wonder when our legislators will begin following our Constitution?
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I wonder when we will be ‘bearing arms’ openly, without some stinking ‘permit’ (aka ‘permission’) from government.
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Until that fine day occurs, I guess we can still walk around with our rifles and shotguns in the open — as there is no law against this in Indiana.